What is the Citizenship of the Children of Diplomats Born in Canada?

23rd Aug 2015 Comments Off on What is the Citizenship of the Children of Diplomats Born in Canada?

Canadian citizenship law provides that a person is generally a Canadian citizen if they are born in Canada.  Since 1952, however, there has been an exception to those who are born in Canada if neither of the child’s parents are Canadian citizens or permanent residents and if either parent was, at the time of the child’s birth:

  • a diplomatic or consular officer or other representative or employee in Canada of a foreign government;
  • an employee in the service of one of the people listed above; or
  • an officer or employee of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization who benefits from diplomatic privileges and immunities in Canada.

(While the precise wording has changed over time, the above restrictions have remained more or less consistent.)

Diplomatic Immunity is Critical

In Vavilov v. Canada (Citizenship and Immigration Canada), 2017 FCA 132, the Federal Court of Appeal answered the following certified question:

Are the words “other representative or employee of a foreign government in Canada” found in paragraph 3(2)(a) of the Citizenship Act limited to foreign nationals who benefit from diplomatic privileges and immunities?

The Federal Court of Appeal answered in the affirmative. In doing so, it found that the reason why Canadian citizenship law prohibits the children of diplomats from becoming Canadian citizens at birth is because persons who have diplomatic privileges and immunities do not have duties and responsibilities to Canada and are not subject to all Canadian laws.

The Vavilov case, which as of writing is currently before the Supreme Court of Canada, is an interesting one,

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The Right of Permanent Resident Visa Holders to Appeal to the IAD

18th Aug 2015 Comments Off on The Right of Permanent Resident Visa Holders to Appeal to the IAD

On June 5, 2015, the appellants in Elham Fathy Elsayed Ismail et al v. Minister of Citizenship and Immigration, A-203-15, discontinued their appeal of the Federal Court’s decision in Ismail v. Canada (Citizenship and Immigration), 2015 FC 338 (“Ismail“).  This is unfortunate because the question that Justice de Montigny certified needs to be answered.  That question was:

For the purposes of determining its jurisdiction to hear an appeal pursuant to subsection 63(2) of the IRPA, shall the validity of the permanent resident visa be assessed by the IAD at the time of arrival in Canada or at the time the exclusion order is made?

The question is important because it addresses a growing tendency of the Canada Border Services Agency (“CBSA“) to defer the examination of foreign nationals possessing permanent resident visas seeking to become permanent residents where CBSA suspects that the foreign nationals may not be admissible to Canada, rather than preparing an inadmissibility report.  During the deferral period, the CBSA will then contact Citizenship and Immigration Canada (“CIC”), who, often without providing the prospective permanent resident with any notice, cancel the permanent resident visa.  CBSA can then deny entry to Canada on the basis that the person does not have a valid permanent resident visa rather than for the underlying possible inadmissibility.  Many immigration practitioners have suspected that the reason for this is to prevent the prospective permanent resident from having a right of appeal to the Immigration Appeal Division (the “IAD“).

The Federal Court’s decision in Ismail in my opinion raised more questions than it answered, and it is unfortunate that the question will remain murky until the question is again certified in the future.

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Same-sex sponsorship: apply as a spouse, common-law or conjugal partner

18th Aug 2015 Comments Off on Same-sex sponsorship: apply as a spouse, common-law or conjugal partner

The following article appeared in the August edition of The Canadian Immigrant.

In June 2015, the United States Supreme Court in Obergefell v. Hodges required that all U.S. states license marriages between two people of the same sex, essentially legalizing same-sex marriage in America. Two years before, the United States Supreme Court in United States v. Windsor ended the disparate treatment of same-sex and opposite-sex couples in matters of immigration.

The two United States Supreme Court decisions will likely result in American immigration policy more closely resembling that in Canada, where same-sex marriage has been legal since July 20, 2005.

In Canada, people in same-sex and opposite-sex relationships have three options to sponsor their partner from abroad; they can either apply as spouses, common-law partners or conjugal partners.

 Three partnership options

The spouse category is straightforward, and applies to anyone who was legally married, provided that both parties to the marriage are over the age of 16, and that both parties voluntarily entered the marriage and had the capacity to do so. There are specific exceptions to this, including marriages conducted through proxy, telephone, internet and fax, as well as polygamous and bigamous marriages.

The common-law partner category requires people in relationships who have not married to have cohabited together for at least one year in a conjugal relationship. It requires continuous cohabitation for one year, not intermittent cohabitation adding up to one year. While cohabitation means living together continuously, short periods of separation due to work, business travel, family obligations, etc., are permitted. After the one-year period of cohabitation has been established, the partners may live apart for periods of time without legally breaking the cohabitation, provided that there is evidence that both parties are continuing the relationship.

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Joseph v. Canada and the Difficulty of H&C Assessments

12th Aug 2015 Comments Off on Joseph v. Canada and the Difficulty of H&C Assessments

I have previously written about the upcoming Supreme Court of Canada decision in Jeyakannan Kanthasamy v. Minister of Citizenship and Immigration in which the Supreme Court will address the following question:

What is the scope of the humanitarian & compassionate discretion in s. 25 of theImmigration and Refugee Protection Act: is it limited to cases of “unusual and undeserved, or disproportionate hardship”, reserved for exceptional cases, and restricted by requiring that the hardship be ‘personalized’ or that the person’s establishment be greater than what would ordinarily be expected?

The Federal Court recently certified a question of general importance which shows both how restrictive the current principles of humanitarian & compassionate considerations can be, as well as why the Federal Court feels that such an approach is necessary.

Joseph v. Canada

In Joseph v. Canada (Citizenship and Immigration), 2015 FC 661, the Federal court certified the following three questions:

1) Is evidence of kidnapping and similar violent criminal conduct relevant to a hardship analysis under section 25 of the Immigration and Refugee Protection Act?

2) Is it incorrect or unreasonable to require, as part of an H&C, analysis that an applicant establish that the circumstances of hardship that he or she will face on removal are not those generally faced by others in their country of origin?

3) If the answer to question 2) is no, can the conditions in the country of origin support a reasoned inference as to the challenges any applicant would face on return to his or her country of origin, and thereby provide an evidentiary foundation for a meaningful, individualized analysis of hardships that will affect the applicant personally and directly as required by Kanthasamy v Canada (Citizenship and Immigration),

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Awaiting Kanthasamy – And the Possible ReWriting of H&C Considerations

11th Aug 2015 Comments Off on Awaiting Kanthasamy – And the Possible ReWriting of H&C Considerations

On April 16, 2015, the Supreme Court of Canada announced that it was reserving its decision in Jeyakannan Kanthasamy v. Minister of Citizenship and Immigration (“Kanthasamy”). When it is released, Kanthasamy may be the most significant immigration decision since Baker v. Canada (Minister of Citizenship and Immigration).

As noted in the Appellant’s factum, the issue that the Supreme Court of Canada will be addressing is:

What is the scope of the humanitarian & compassionate discretion in s. 25 of the Immigration and Refugee Protection Act: is it limited to cases of “unusual and undeserved, or disproportionate hardship”, reserved for exceptional cases, and restricted by requiring that the hardship be ‘personalized’ or that the person’s establishment be greater than what would ordinarily be expected?

As any immigration practitioner can confirm, if the Supreme Court of Canada broadens the current restrictive interpretation of humanitarian & compassionate considerations under s. 25 of the Immigration and Refugee Protection Act (“IRPA“) it would cause a monumental shift in the processing of immigration applications.

The Federal Court of Appeal Decision 

In Kanthasamy v. Canada (Citizenship and Immigration), 2013 FC 802, the Federal Court certified the following question of general importance.

What is the nature of the risk, if any, to be assessed with respect to humanitarian and compassionate considerations under section 25 of IRPA, as amended by the Balanced Refugee Reform Act?

The Federal Court of Appeal answered as follows:

Matters such as well-founded fear of persecution, risk to life, and risk of cruel and unusual treatment or punishment – factors under sections 96 and 97 – may not be considered under subsection 25(1) by virtue of subsection 25(1.3).

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Certified Questions on Cessation

10th Aug 2015 Comments Off on Certified Questions on Cessation

Section 108 of the Immigration and Refugee Protection Act states that a person’s refugee protection chall cease when:

Rejection

108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances:

(a) the person has voluntarily reavailed themself of the protection of their country of nationality;

(b) the person has voluntarily reacquired their nationality;

(c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality;

(d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or

(e) the reasons for which the person sought refugee protection have ceased to exist.

Cessation of refugee protection

(2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1).

Effect of decision

(3) If the application is allowed, the claim of the person is deemed to be rejected.

Exception

(4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.

As previously noted on this blog:

Traditionally, the CBSA rarely initiated cessation proceedings because the loss of refugee status did not also lead to a loss of permanent residence status.  

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Suspending Citizenship Applications Due to Cessation Hearings

5th Aug 2015 Comments Off on Suspending Citizenship Applications Due to Cessation Hearings

Last updated on May 31st, 2019

Until recently, the Government of Canada adopted a very aggressive approach regarding the initiation of cessation applications against permanent residents who are protected persons. The reason is because since 2012 people who lose their protected person status for any of the following reasons also lose their permanent resident status:

  1. the person has voluntarily re-availed himself or herself of the protection of their country of nationality;
  2. the person has voluntarily reacquired their nationality;
  3. the person has acquired a new nationality and enjoys the protection of that new nationality; and
  4. the person has voluntarily become re-established in the country that the person left before claiming refugee status in Canada.

Several permanent residents with citizenship applications in processing have been affected by cessation applications.  In Godinez Ovalle v. Canada (Citizenship and Immigration), the Federal Court rather bluntly told both Immigration, Refugees and Citizenship Canada (“IRCC“) and the Canada Border Services Agency (“CBSA“) that they were out of line, and even called their approach “inhumane.”

Ultimately, however, the Federal Court of Appeal in 2017 determined that IRCC can indeed suspend the processing of citizenship applications while cessation proceedings are underway.

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Electronic Travel Authorization

5th Aug 2015 Comments Off on Electronic Travel Authorization

On August 1, 2015, the Government of Canada launched the Electronic Travel Authorization (“eTA”) program.  The program is similar to the United States of America’s Electronic System for Travel Authorization. Implementation of the eTA program will allow Canada to pre-screen eTA-required travellers to ensure that they are admissible to Canada.

As of March 15, 2016, most foreign nationals who are exempt from the requirement to obtain a Temporary Resident Visa (“TRV“) to enter Canada will be required to obtain an eTA before they travel to Canada by air.  A list of countries and territories whose citizens will need an eTA to travel to Canada can be found here.  As such, it will no longer be the case that residents of these countries can simply purchase tickets and board planes to travel to Canada.  Rather, an individual will be unable to board a commercial airline to Canada unless the airline first confirms that the individual possesses an eTA through the Canada Border Services Agency’s new Interactive Advance Passenger Information system.

Americans are exempted from the requirement to obtain an eTA.

The eTA is an online application on the Citizenship and Immigration Canada (“CIC“) website.  Applicants will need to provide their passport details, personal details, contact information, and answer background questions regarding their health, criminal history, and travel history. CIC anticipates that it will automatically process most eTA applications within minutes. When an eTA application cannot be automatically approved, it will be referred to a CIC officer for a manual review.  Officers can request additional documents, and, where required, further the application to a Canadian visa office abroad for further processing, including a possible interview.

The eTA will be valid for five years or until the applicant’s passport expires, whichever occurs sooner.

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